Superstrike Ltd vs Rodrigues Tenancy Deposit Protection Court of Appeal

I think some are maybe missing the point here, It really doesn’t matter anymore what the DPS/TDS or any other scheme provider guide lines say, I am sure they are as concerned about this silly judgment as we all are, or should be.

When the court makes a decision it over rules the schemes guide lines as they are not statute law. They will have to rewrite the book on this one.

Also don’t be miss lead by some of the confusion being churned up; In this case, the original tenancy predated the deposit protection rules. The tenancy ran statutory periodic after the legislation came into force and they were found guilty of failing to protect the deposit. This meant their section 21 notice was not valid and they became liable of a penalty of up to three times the value of the deposit.

The possession claim from the landlord was also dismissed; the rub here is the original AST was before the law was changed, so no law was broken at that point,

Then if a new tenancy has been created as a result of going SP after the change date, then does this judgment not make it become a fixed term? I accept it moves away from the SP and protection argument, but it could certainly see the death knoll of statutory periodic tenancies as this decision basically kills them off? or certainly the spirit in which we all have dealt with them.

All the other deposit implications has risen since this judgment and I am sure this will rage on until the SC setts the record straight by confirming the original spirit and interpretation of the SP legislation section 21(4)(a)

Just in case you need to drew a line under it follow this link http://www.letlink.co.uk/GeneralInfo/General_possession/S21_4_A.pdf

But most of all in the spirit of war time Britton “Don’t panic Mr Mannering”
Don Holmes

"I think some are maybe missing the point here, It really doesn’t matter anymore what the DPS/TDS or any other scheme provider guidelines say, I am sure they are as concerned about this silly judgment as we all are, or should be."

The more I read the less I am concerned, not that I have been very worried from the start of this farce.

However, let's get one thing straight, the scheme providers issue rules which must be followed or you are in breach of the legislation. This is why I posted the ridiculous example that if your deposit protection scheme required a donation to UKIP of £5 per deposit and you did not pay, you would be in breach of their scheme rules and would not have complied with 213(4).

In theory there is a vicious circle here. If your scheme provider tells you not to re-register when your tenancy goes periodic you comply with the rules by not re-registering. If the new interpretation of the law tells you a new tenancy is created and you must re-register the deposit then the rules are in conflict with the law. So you comply with the rules, do not re-register and you are therefore in conflict with the law as you have not re-registered. Alternatively, as things currently stand with at least two deposit schemes, you re-register the deposit, you are in breach of the scheme rules, and you are therefore in conflict with the law!

This is all a bit theoretical and academic, a bit like the arguments that created this problem in the Court of Appeal.
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"When the court makes a decision it over rules the schemes guidelines as they are not statute law. They will have to rewrite the book on this one."

True. In time scheme rules will be amended. However, the most important point is that it is likely that new legislation will be required with (unusually) a retrospective effect.

Only a simple change is needed, a new section to the effect that a new tenancy created under section 5 Housing Act 1988 is not a new tenancy for the purposes of deposit protection legislation. An option could be added that this only applies if the deposit should have been protected at the start of the original tenancy and was so protected.

Give me another hour and an MP's consultancy fee and I'll draft the actual legislation if you want.
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"Also don’t be miss lead by some of the confusion being churned up; In this case the original AST was before the law was changed, so no law was broken at that point, Then if a new tenancy has been created as a result of going SP after the change date, then does this judgment not make it become a fixed term? I accept it moves away from the SP and protection argument, but it could certainly see the death knoll of statutory periodic tenancies as this decision basically kills them off? or certainly the spirit in which we all have dealt with them."

With all due respect, I think you are being misled by the confusion being churned up. The law is quite clear that a statutory periodic tenancy comes into force at the end of a fixed term, unless notice is given or a new tenancy is agreed. The only new point is that it has been ruled that the statutory periodic tenancy is a new tenancy, not a continuation of the original fixed term agreement. Are you suggesting that you want the law to create a new statutory fixed term contract? If so, I would be interested to hear your arguments in support of this. How does this ruling abolish statutory periodic tenancies?
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"All the other deposit implications has risen since this judgment and I am sure this will rage on until the SC setts the record straight by confirming the original spirit and interpretation of the SP legislation section 21(4)(a) "

If I remember correctly, the Supreme Court can only look at the judgment and see if there is a mistake in law. In doing so they can look to the intent of the legislation only if the legislation is not clear. This case will only go the Supreme Court if the landlord is feeing rich or covered by insurance, which agrees to carry on paying out. The Supreme Court cannot change the law.

Frankly, I think this matter is far too important to put in front of judges again. What is needed is for government to agree to a change in the law with retrospective effect. So we are in the hands of the politicians. That's OK then. Remind me who introduced these new deposit protection rules in the first place?
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"Just in case you need to drew a line under it follow this link http://www.letlink.co.uk/GeneralInfo/General_possession/S21_4_A.pdf "

I'm not sure I follow your point here. This is just for serving notice under a periodic tenancy?

I have created a follow up article, please see >>> http://www.property118.com/landlord-power-can-and-will-get-deposit-protection-rules-clarified/40693/

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